Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments
The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:
B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.
C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.
And “exercise of religion” is defined (in § 41-1493.01) very broadly:
“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:
Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s ... [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.
Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.
Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.
This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.
Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.
But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.